There has been some progress towards achieving due process for Australia’s “legal black hole” refugees. These are 60-odd people who the Department of Immigration and Citizenship has certified as genuine refugees, but then kept detained because ASIO gave them adverse security assessments.

The independent reviewer, retired Federal Court Judge Margaret Stone, has ensured they can now receive ASIO’s reasons for judging them a security risk. However, human rights advocates have pointed out the limitations of Stone’s role, and that it’s doubtful “the independent reviewer process will give refugees enough to be able to defend themselves effectively.”

A bigger question is why should an adverse assessment result in indefinite detention at all?

Given that ASIO’s adverse security assessment are being posited by the government as so serious as justify their current treatment, it’s worth reflecting on what an adverse assessment actually means.

At a talk in February 2012, Director-General of ASIO David Irvine used the following words to describe adverse assessments for visa applications:

“ASIO has, over the years, developed very careful processes that enable us to eventually make a predictive judgement as to whether this person might be a potential security risk to Australia, and the security here being defined in terms of section 4 of the ASIO Act. Someone who might be coming to Australia to conduct espionage, someone who might be coming to Australia to conduct an act of sabotage, someone who might be coming to Australia to conduct an act of terrorism, and so on.” [after 1:35:00, emphasis added]

Australia is detaining people indefinitely based on a predictive judgement that they might pose a security risk.

The type of risk does not necessarily involve direct danger to Australia. The available information (which is limited, but fortunately more is coming out) suggests that the adverse assessments are based on less immediate security concerns.

Most of the people detained are Sri Lankan Tamils suspected of involvement with the Liberation Tigers of Tamil Elaam (LTTE, or Tamil Tigers). A recent High Court case, Plaintiff M47/2012 v. Director-General of Security & Ors, allowed insight into the issues at stake in one adverse assessment, which revolved around the refugee’s alleged support for LTTE violence in Sri Lanka, not any threat of violence in Australia.

Involvement with the LTTE (or its subsequent incarnations) is a legitimate security concern, as Australia has an international obligation to prevent its territory being used as a base for violence against other countries. And sometimes support networks for external insurgencies can become threats to their host country. But there is a huge difference between a security concern and something that necessitates detention.

Some of the adverse assessments are not LTTE-related and likely have nothing to do with violence, such as one teenage Kuwaiti refugee reportedly deemed a security risk because his father was involved in people-smuggling.

So the detained refugees are hardly people suspected of planning to shoot up a shopping centre if released.

This is a weak basis for indefinite detention, and ASIO itself has not stated (at least publicly) that this treatment is required. The government, not ASIO, makes the decision to detain them, and in the February 2012 talk David Irvine said:

“ASIO does not have a view, and certainly not a public view, on whether people who receive adverse assessments generically should be held in detention or not. There are other ways, and other solutions, to that problem, and is up to the government to examine all the possibilities and make its decision.”

Yet most of our elected leaders see these security assessments as justifying the current system, which involves locking people up for potentially the rest of their lives. This is no exaggeration, as one adversely-assessed refugee has committed suicide and several more have attempted to.

This is why it is important to be aware of what an adverse security assessment from ASIO actually means.

These are not people proven to be dangerous, like paroled criminals. Indefinite detention is already at odds with liberal democratic norms, but in this case it’s worse because the detention is based simply on predictive judgements that someone might pose a risk.

Australia does not indefinitely detain convicted terrorists who planned acts of violence in Melbourne and Sydney.  It makes no sense to indefinitely detain people because of vaguer and less immediate security risks, and is not necessary.

It is difficult to find a single security expert who supports the government’s current approach, and several have expressed various forms of opposition to it. A report by the Joint Select Committee on Australia’s Immigration Detention Network also contains examples of expert opposition.

Our security agencies have extensive resources and powers to address the various risks these individuals may pose. Many conditions can be placed on released refugees to ensure this, including restrictive measures such as electronic tagging if in some cases there does turn out to be evidence of direct danger to Australia.

There are already many laws in place to allow this, and if neccesary new laws can be passed. As a Canberra Times editorial pointed out, “the legal and administrative mind is capable of devising any number of variations of supervised or monitored freedom, parole and conditional rights of residence in ways which secure all of the relevant interests.”

In short, the assumption that the ASIO assessments show that these refugees pose a danger that requires the current regime of indefinite detention is baseless. This is no knee-jerk critique; I have often defended ASIO and supported some of its most controversial powers. But its adverse security assessments do not justify the horror of indefinite detention.

Update 1:

The human rights volunteer organisation Right Now has kindly published a version of this post, with some edits.